In Hot Water: Bloomberg Speaks to William C. Banks About President Trump’s Latest Legal Issues

(Bloomberg Law | Aug. 10, 2018) William Banks, a professor at Syracuse University Law School, discusses the latest in the negotiations between President Trump’s legal team and Robert Mueller over a sit-down meeting between the President and the special counsel. He speaks with Bloomberg’s June Grasso on Bloomberg Radio’s “Politics, Policy, Power and Law.”

The 2018 edition of INSCT’s signature initiative New Battlefields/Old Laws will take place at the World Summit on Counterterrorism, to be held Sept. 3-6, 2018, at the Institute for Counter-terrorism (ICT), Herzliya, Israel.

Co-chaired by Professor Emeritus William C. Banks and Professor Daphné Richemond-Barak, Head of International Humanitarian Law Desk Law and Security Program, ICT, the theme of this year’s multi-disciplinary NBOL workshop—on September 5—is “When Disaster Hits: Threats, Preparedness, and Legal Gaps.”

The workshop will investigate multiple facets of law and policy responses during and after major natural and human disasters. Papers will address disaster governance, cyber disasters, responding to health epidemics and pandemics, and “disaster law,” or the analysis of gaps in national security and international law that disasters can expose.

ICT’s annual international summit is the largest and one of the most influential events in the field of counterterrorism. Bringing together academics, scholars, law enforcement officials, and decision-makers, this year the summit will convene around the theme of difficulties liberal democracies face in combatting terrorism, such as striking a balance between democratic values and security.

“Countering terrorism by developing solutions to these dilemmas is not just a strategy, but a true art. This year’s conference will delve into the ‘Art of Counter-Terrorism,'” the workshop organizers write. Five themes will help to highlight the challenges of combatting terrorism: Assessment and Response; Rationale and Rationality; Motivation and Capability; Terrorism and Democracy; and Recovery and Resilience.

On July 11-12, 2018, NATO’s head of states and governments met in Brussels to discuss the current security threats to NATO member states. The Brussels Summit was the third meeting, after NATO summits in Newport and Warsaw, leading to a security adaptation of the NATO Alliance to new strategic challenges in the Euro-Atlantic area after the 2014 Russian aggression against Ukraine.

“Despite that China has systematically increased its attention to the High North, Russia will remain the main military competitor for the Nordic states and entire NATO in the region in the nearly future.”

At the 2018 NATO Summit, politicians discussed fair burden-sharing demanded by US President Donald J. Trump, and they have agreed to reshape the NATO command structure by establishing two new operational commands—in the United States at Norfolk, VA, and in Germany at Ulm—to secure military movements across the Atlantic and within Europe. They also boosted cooperation between the European Union and NATO, confirmed NATO’s engagement in Afghanistan, launched a new training mission in Iraq, and balanced the Alliance present on both NATO’s eastern and south flanks.

All of these points were placed in the Brussels Summit Declaration, a 79-point document highlighting all decisions approved at the Summit. Unfortunately, not too much attention was given to NATO’s northern flank. NATO leaders kept up its 360° approach that applies to all geographical directions, including NATO’s northern flank. They also confirmed fruitful cooperation with Finland and Sweden. Both countries were invited for the Summit by NATO Secretary General Jens Stoltenberg and looked forward to strengthening this cooperation (Article 52 of the Declaration).

But nothing was mentioned of the Arctic region, commonly known as the High North, which is a vital area for three European NATO members—Norway, Denmark, and Iceland—as well as for Canada and the United States, which are members of the Arctic Council. (The Arctic Council is composed of eight members: Canada, Denmark (representing Greenland and Faroe Islands), Finland, Iceland, Sweden, Norway, Russia, and the US.)

Despite the fact that the High North is seeing currently peaceful cooperation, the growth of importance of the region and military capabilities of Russia could change this harmony. Therefore, Russian military presence in the High North demands a coherent response from the entire Alliance. Touching on this issue would help the Nordic partners, Canada, and the US strengthen security and prevent a prospective conflict in the region.

Russia’s Increased Presence in the High North

Europeans—ever since the Russian annexation of Crimea and the outbreak of violence in Donbas—have observed the rise of Russian assertiveness and hostile activities against NATO alongside its eastern and northern flanks (including the High North). Russia has systematically increased its presence in the High North, focusing on the dispute on the Arctic continental shelf about natural resources and securing maritime routes and arming the region.

Russia’s militarization of the High North had accelerated dramatically since 2014 when the Russian Ministry of Defense established the Northern Fleet Joint Strategic Command based near Murmansk in the Kola Bay, which plans and commands military operations in the Arctic. On Nov. 30, 2016, the Russian Ministry of Foreign Affairs released the Foreign Policy Concept (FPC), replacing a 2013 document. Authors of the FPC have highlighted the strategic importance of the Arctic to Russia and its foreign and security policy and indicated that the area could witness the increase of international competition shortly. The FPC also completes the Russian military and naval doctrines emphasizing the necessity to increase Russia’s military presence in the High North.

Russia has systematically increased military expenditures to strengthen both conventional and nuclear forces, which could be used in a prospective conflict along its northern coast and on Arctic islands. The Russian Ministry of Defense has particularly developed strategic submarines with Bulava missiles (putting into service Yasen-class submarines); strategic bombers (the TU-160); and Anti-Access/Area Denial (A2AD) measures compose of S-300 and S-400 missile systems to secure Russian military facilities in the region.

Alongside strengthening both conventional and nuclear capabilities in the region, Russia has regularly conducted military exercises of its Arctic troops, subordinating to both Murmansk and Arkhangelsk Military Oblasts. Morever, Russia has built and equipped four Arctic brigade combat teams (BCT), roughly 16,000 troops combined.

What Next for NATO, Scandanavia, and the High North? Some Recommendations

Despite that China has systematically increased its attention to the High North, Russia will remain the main military competitor for the Nordic states and entire NATO in the region in the nearly future.

On the eve of potential conflict in the Arctic, Russia will not respect the neutrality of Sweden and Finland due to their strong ties with the West and its politico-military institutions. It is highly possible that potential conflict on the Arctic would happen in northern Norway, Sweden, and Finland. Therefore, it is necessary that NATO influence Sweden and Finland to join the Alliance in the nearly future. Denmark and Norway should also support the narrowing of ties between NATO and NORDEFCO and cooperation between NATO and the EU.

Conversely, NATO should remain a cornerstone of Denmark’s and Norway’s security and defense policy regarding the High North. Both countries need to strengthen the capacity of the Danish and Norwegian armed forces and their contribution into NATO’s collective defense, such as the enhanced Forward Presence in the Baltic States and Poland (eFP) or the tailored Forward Presence in Romania (tFP). Moreover, both countries need to invest more in their military expenditures (Norway currently spends 1.61% of its GDP on defense; Denmark only 1.21%.)

By involving in the enhanced Forward presence (eFP) in the Baltic States and Poland, Norway and Denmark will become credible allies to other NATO member states, and this strategy will help both countries pursue their national interests regarding the High North.

Neither Denmark nor Norway unilaterally should pursue a response to growing Russian assertiveness in the High North; instead, they should fully implement the deterrence and defense strategy (2D) and the NATO’s 360° approach. Therefore, the Alliance must keep its strategic engagement in all NATO’s flanks, including the High North. However, at the same time there is a need to continue dialogue with Russia in the framework of the NATO-Russia Council (NRC) and the Organization for Security and Cooperation in Europe (OSCE). Leadership from the United States is essential for Denmark and Norway to implement NATO’s enhanced northern presence, and both countries should keep and develop strategic ties with the United States.

Furthermore, to conduct effective operations in the High North, the Alliance urgently needs to adopt an Arctic strategy and ensure a common approach to the region’s security challenges. Although NATO decided to deploy four battle groups to NATO’s eastern flank and increase its military presence in Romania and Bulgaria, NATO’s potential to deter Russia remains insufficient. Regarding that, the Alliance must rapidly boost its military presence on its northern flank and have troops ready to be deployed to the High North, such as the Very High Readiness Joint Task Force (VJTF) and the NATO Response Force (NRF).

Maintaining the ability to a swiftly deploy the VJTF and the NRF troops to the region is crucial to improving NATO’s capacity to deter Russia effectively. Therefore, both the VJTF and the NRF troops must practice conducting operations in adverse weather conditions and severe environments, something that is part of the upcoming military exercises called Trident Juncture 2018 in Norway (October and November 2018).

Finally, all NATO decisions strengthening the NATO’s military presence in the High North must ensure military transparency throughout the 2011 Vienna Document and the Open Skies Treaty.

INSCT Research and Practice Associate Kamil Szubart was a 2017 visiting fellow at INSCT, via the Kosciuszko Foundation. He works as an analyst for the Institute for Western Affairs in Poznan, Poland, where he is responsible for German foreign and security policy, transatlantic relations, Islamic threats in German-native-speaking countries and topics related to NATO, CSDP, OSCE, and the UN. Currently, he is working on a doctoral dissertation examining US-German relations in the field of international security since 9/11.

NSA criticized for ‘increased risk’ of jeopardizing civil liberties

(Fifth Domain | July 25, 2018) The National Security Agency is at an “increased risk” of jeopardizing civil liberties and the privacy of American citizens, according to an inspector general report that comes just months after a controversial program that collects emails and phone calls was extended.

“A fair amount of it was apparently mechanical or machine-driven mistakes.”

The NSA watchdog said that agency analysts performed “noncompliant” searches using the organization’s Foreign Intelligence Surveillance Act Authority, which were caused by “human error, incomplete understanding of the rules, and gaps in guidance.”

According to the report, which covered the period from October 1, 2017, to March 31, 2018 the unauthorized searches were related to the FISA’s counterterrorism authority.

“This has been going on for some time,” said William Banks, a law professor at Syracuse University. He said that noncompliance was a heated topic when the section 702 of the FISA act was reauthorized earlier this year. “A fair amount of it was apparently mechanical or machine-driven mistakes … you would expect it might take the better part of a year for improvement in implementation to show results.”

Previously, privacy groups have raised issue with the noncompliance searches of digital and electronic records …

Syracuse University College of Law and Professor of Practice and INSCT Faculty Member David M. Crane has been appointed Chair of a United Nations Human Rights Council Independent International Commission of Inquiry into alleged violations of international law “in the context of large-scale civilian protests in the Occupied Palestinian Territory” that occurred during May 2018.

The protests—primarily in Gaza and East Jerusalem—came in the wake of the announcement that the United States would move its embassy to Jerusalem and coincided with the 70th anniversary of Nakba (the 1948 Palestinian Exodus). The Guardian noted that May 14, 2018, was “the bloodiest day in Gaza since the 2014 war”. At the time, The Guardian reported, other UN human rights bodies—including UN Committee on the Elimination of Racial Discrimination—urged Israel to halt “excessive force” against Palestinian protesters, and Amnesty International accused Israel of violating international law.

In his letter of appointment to Crane, UNHRC President Vojislav Šuc observed that the Commission has been formed as a result of the UNHRC Resolution S-28/1. In the Resolution, the Council decided “to urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Human Rights Council.”

The Resolution grew out of a May 18 Special Session of the UNHRC, at which UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein called attention to the “[a]ppalling recent events in Gaza.” She explained to the Council that, “Since … protests began on 30 March, 87 Palestinians have been killed by the Israeli security forces in the context of the demonstrations, including 12 children; 29 others, including three children, were killed in other circumstances. And over 12,000 people have been injured, more than 3,500 of them by live ammunition.”

Resolution S-28/1 also “Calls upon Israel, the occupying Power, and all relevant parties to cooperate fully with the commission of inquiry and to facilitate its access, requests the cooperation, as appropriate, of other relevant United Nations bodies with the commission of inquiry to carry out its mission.”

“The focus of the investigation is to be open minded, fair, and neutral,” says Crane.

The two other members of the Commission of Inquiry will be Sara Hossain, a Bangladeshi lawyer, and Kaari Betty Murungi, a Kenyan lawyer and human rights activist. The commissioners have been asked to convene a meeting in Geneva, Switzerland, “with a view to agreeing on terms of reference and methods of work, establishing contacts with relevant stakeholders, and preparing [a] programme of work.”

Why Team Trump is wrong about Carter Page, the dossier and that secret warrant

(NBC News | July 23, 2018) Mueller’s Russia probe wasn’t launched because of Carter Page, and the dossier compiled by an ex-spy was only part of the evidence cited to get a warrant.

President Donald Trump and his allies are claiming that the partial contents of a secret national security FISA warrant, released Saturday, vindicate their claim that special counsel Robert Mueller’s Russia investigation was improperly launched on the basis of a speculative opposition research document paid for by Democrats.

The Trump camp says the probe has its roots in the “Trump dossier” compiled by former British spy Christopher Steele, which alleges collusion between the Trump campaign and Russia.

“So we now find out that it was indeed the unverified and Fake Dirty Dossier, that was paid for by Crooked Hillary Clinton and the DNC, that was knowingly & falsely submitted to FISA and which was responsible for starting the totally conflicted and discredited Mueller Witch Hunt!” the president wrote in a tweet Monday morning.

Trump also continues to suggest that the electronic surveillance of his one-time campaign aide, Carter Page, which was authorized by the FISA warrant, launched the Russia probe.

Both of these assertions are false.

Here is why …

National security experts who have reviewed the document say that even the parts that aren’t blacked out contain more than enough information to provide a judge reason to rule that the FBI had probable cause to believe that Page was an agent of Russia.

Probable cause is much lower than the reasonable doubt the standard required to convict someone of a crime. “It’s the probability of a possibility,” said William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University College of Law. Page had already appeared on the FBI’s radar as a target of Russian intelligence recruitment in a separate spy case. He has acknowledged that he traveled to Moscow and met with Russian officials during the 2016 campaign. It would have been malpractice for the FBI, confronted with allegations that Page was helping the Russians, not to investigate, Figliuzzi says …

The FBI disclosed to the court that Steele was paid by people seeking to discredit Trump. But the FBI viewed Steele as credible.

“They dealt with the Steele stuff in an extensive footnote with bolded language,” Banks said. The note didn’t disclose that the dossier was paid for by Democrats because the document didn’t use any names or identities. It called Trump “Candidate 1” even after he was elected president. But the note did say that the dossier appeared to be funded by people seeking to discredit Trump.

In addition, Steele was seen not as a partisan operative, but as a credible source, according to the warrant. The document doesn’t say this, but Steele had helped the FBI for years, including providing crucial information in the U.S. investigation of corruption in international soccer.

BRETT KAVANAUGH HAS POWER TO STRENGTHEN DONALD TRUMP, BUT SUPREME COURT HAS BOOSTED PRESIDENTS FOR DECADES

(Newsweek | July 20, 2018) Supreme Court nominee Judge Brett Kavanaugh’s opposition to a sitting president potentially facing an indictment, as well as the court’s lengthy history in bending the Constitution to favor a president’s powers, could raise as much concern among opponents of President Donald Trump’s nominee as his potential threat to abortion rights.

But as Snyder noted, the court is “retroactive” and thus reactionary. And that leaves it beholden to the actions taken by a president.

For a president who has openly flaunted what he believes is the power to pardon himself, Trump may have taken into account Kavanaugh’s views on executive power and how much power the U.S. Constitution places in the president.

The nominee’s belief in presidential power may even extend to criminal prosecutions. Kavanaugh, who Monday said would “keep an open mind in every case,” distinctly laid out his view over whether a sitting president should face criminal charges while in office in 2009 for the Minnesota Law Review. He based the interpretation on his experience with George W. Bush’s administration …

… Many of these decisions by the court would suggest the judiciary often bows to the executive branch, but William C. Snyder, Teaching Professor at Syracuse Law School and expert on federal courts, disagreed.

“Our federal courts are reactive. They only respond to actual cases and controversies. So, they seem to be a slow check and balance in a world that moves fast. But, the Supreme Court does come around,” Snyder told Newsweek in an email.

But as Snyder noted, the court is “retroactive” and thus reactionary. And that leaves it beholden to the actions taken by a president, one who Snyder admits could have ulterior motives.

“Yes, it may well be that this president is more concerned with finding a justice who will uphold executive power in general than with finding one whose position on a particular policy or right matches his own,” Snyder said. “[T]his president is known to shift his own positions, so a justice who would uphold executive power, in general, would be more useful to him.”

In a bombing, the dust settles slowly over the strike zone. What emerges are grey images, living beings neutralized to monochrome. Bleeding from the ears, deaf, and dumb from the concussions the survivors walk about in a haze. These zombies are the first things you see staggering down the street away from the rubble behind them, rubble that is the tomb of loved ones, neighbors, and friends.

“For a decade or so, the rule of law prevailed regarding holding those who commit war crimes and crimes against humanity accountable. Yet we have slipped down a slippery slope. That political will is waning.”

There is no militarily necessary reason for the destruction, the strike carried out by one of the combatants who knew or should have known about the laws of armed conflict. The rules do not matter in most conflicts of the 21st century. Welcome to the dirty little wars that nip at the heels of civilization, a civilization grown weary of it all and who look the other way. It is just too hard to marshal enough political will to do something.

A powerless United Nations can do nothing other than to help ease the pain of air strikes by caring for the wounded and the terrified refugees. The once proud mandate of restoring international peace and security has changed to maintaining at best that peace and security.

The three nations that could restore that prominence, the United States, China, and Russia are its biggest challenges and all three could certainly live without the paradigm of peace set forth in 1945. All three of those nations over the past years are also the biggest human rights abusers led by strong men.

International Law has evolved over centuries through customary practice and the consent of nations to bind themselves to certain norms. Indeed the day-to-day actions in commerce, trade, and finance all hinge upon these norms. Over time, other norms that declare that human beings have rights to be free from want, fear, and to speak their minds and worship freely are now enforceable and carry an accounting if violated.

From all this just twenty-five years ago, modern international criminal law began. For a decade or so, the rule of law prevailed regarding holding those who commit war crimes and crimes against humanity accountable. Yet we have slipped down a slippery slope. That political will is waning and the use of the law to govern international relations regarding humanity challenged.

In this kaleidoscopic void, dirty little wars flourish like weeds in an abandoned lot. Yemen is one of those weeds thriving in the dusty haze of airstrikes.

The likes of the Yemeni conflict exists but for this condition and circumstance. A surrogate conflict backed by cynical nations vying for power and influence in the greater region that is the Middle East, the possibility of a peaceful resolution hinges on the rule of law. It is not going to happen …

(Re-published from SU News | July 5, 2018) The running joke among foreign analysts is that, despite Russia’s dismal FIFA ranking, it may emerge as the real winner of the World Cup.

Between now and July 15, 2018, millions of fans will flock to various Russian cities, including Moscow, St. Petersburg and Sochi, to watch their national teams compete for soccer’s Holy Grail. Billions more will watch the action on television.

“Emotions often get short shrift from social scientists trying to decipher political behavior, but Taylor insists they are integral to Russian decision-making.”

Although Team Russia has dialed up some surprise victories, President Vladimir Putin, who has invested more than $13 billion on stadia and infrastructure, seems to have more than soccer on his mind. Those close to him insist he is using the World Cup to foment feelings of national pride, while enhancing his popular standing.

“The World Cup is more important to Putin than you think,” says Brian D. Taylor, professor and chair of political science in the Maxwell School and the College of Arts and Sciences (A&S). “A lot has happened to Russia since 2010, when Putin won the bid to host the tournament—his re-election, the annexation of Crimea, Russian’s intervention in the Syrian war. The games come at a time when Russia’s standing in the world is precariously low.”

Taylor speaks with authority. A scholar of Russian and comparative politics, he is the author of “The Code of Putinism” (Oxford University Press, 2018), a new book about how Putin’s mentality shapes his country’s politics. As Russia teeters on the brink of economic stagnation and international ostracism, Taylor argues that mega events, such as the World Cup and the Winter Olympics in Sochi, four years earlier, have strong political ramifications. “Merely hosting the World Cup is a major coup. It shows Russia still matters,” he says.

Most of Taylor’s career has been a warm-up for “The Code of Putinism,” which he began researching five years ago. Drawing on hundreds of interviews and speeches, Taylor thinks Putin’s messianic vision could be Russia’s undoing.

Speaking by phone from his office in Eggers Hall, the bespectacled, clean-cut author riffs on how the code motivates Putin’s decisions and influences the way he and his allies view the world. “The code of Putinism has molded Russia’s political system, along with its economy and foreign policy, since Putin’s election as president in 2000,” says Taylor, who also authored State Building in Putin’s Russia: Policing and Coercion After Communism (2011) and Politics and the Russian Army: Civil-Military Relations, 1689-2000 (2003), both from Cambridge University Press. “Key factors of Russian politics—authoritarianism, Putin’s reliance on a small group of friends and associates, state domination of the economy, an assertive foreign policy—owe their existence to the code.”

Golfo Alexopoulos, director of the University of South Florida (USF) Institute on Russia, praises “The Code of Putinism” for exposing Putin’s worldview, leadership style and method of governing. “It is critical for Americans to understand Russian thinking and motives, so we can formulate an intelligent Russia policy that advances democracy and global security,” says Alexopoulos, also a history professor at USF. “Dr. Taylor has a deep understanding of contemporary Russia and its historical and cultural legacies.”The basic notion of the code was inspired by Max Weber, an early 20th-century German sociologist. He believed that people are motivated by not only rational self-interest, but also ideas, habits and emotions. Taylor builds on this insight to analyze Putin’s mentality.

In Putin’s case, ideas include statism, anti-Westernism, conservatism and anti-liberalism. “Putin is a great power statist who believes in a strong Russia at home and abroad. He also is a conservative, prioritizing the group over the individual, as well as tradition over change and reform,” says Taylor, who earned a Ph.D. in political science from MIT. “Putin’s Russia is a ‘service state’—not one that provides services to its citizens, but one that expects citizens to serve it.”

Habits are unconscious reactions to stimuli, rather than deeply considered ideas. Putin’s key impulses involve control, order and loyalty. “Many of his habits were cemented by the time he joined the KGB in the ’70s,” Taylor says. “He and his aides made their careers as bureaucrats, not politicians, so they are used to hierarchical organizational structures. Witness Putin’s early presidential slogan: the ‘vertical of power.’”

Emotions often get short shrift from social scientists trying to decipher political behavior, but Taylor insists they are integral to Russian decision-making. “Emotions relate to how Putin sees Russia,” he says. “They include feelings of resentment, vulnerability and loss of status, stemming from Russia’s perceived humiliation after the Cold War. Putin believes it is time to redress these feelings and gain back the respect of the world.”

That the Putinist code is making inroads into classrooms is proof Taylor is onto something. Lauren McCarthy, associate professor of legal studies at the University of Massachusetts Amherst, says “The Code of Putinism” is a must-read for anyone wanting to understand how Russia operates. “Once you immerse yourself in the habits, emotions and ideas that make up Putinism, everything that happens in Russia makes more sense,” says McCarthy, who teaches a course on Russian politics, law and society. “My students [who study the code] walk away feeling like they know how to interpret Russian politics and Putin, himself.”

Thomas Keck thinks Taylor is uniquely qualified to assess the return of Global Russia. “He is a leading expert on Russian politics, particularly the state’s military and law enforcement apparatus,” says Keck, professor of political science and the Michael O. Sawyer Chair of Constitutional Law and Politics in the Maxwell School and A&S. “Brian is a popular but demanding teacher, as evidenced by his courses on Russian politics and civil-military relations. His book could not be more relevant.”

Not since the Cold War has interest in Russia bordered on obsession, if not paranoia. Doubtless that the World Cup will help burnish the country’s newfound swagger … MORE

The ongoing operation of the US military commissions at Guantanamo Bay has posed significant challenges for multiple US administrations. Originally established by President George W. Bush in the aftermath of 9/11 to try noncitizen terrorism suspects, the commissions have been plagued with a variety of problems. Cases have languished, and no contested commission trials have become final, including the 9/11 case itself—for which a trial has not yet begun. (Military commission proceedings have resulted in 8 convictions pursuant to pleas, however). Much of the law related to commissions remains unsettled and in dispute. For example, it is unsettled precisely which crimes can be tried before the commissions.

“The Workshop Report offers a detailed, non-partisan, legal and policy analysis and recommendations with respect to the wide range of issues that currently face the Military Commissions.”

Meanwhile, the commissions are operating against a backdrop of changing policies regarding the detention facility at Guantanamo Bay. President Trump recently reversed the Obama Administration’s stated policy of closing the facility, where participants in the military commissions system are housed along with other terrorism detainees. As of May 3, there are 40 detainees held at Guantanamo, 4 of whom have been deemed eligible for transfer to other countries. (They cannot be moved to the United States, due a legislative ban). Of the remainder, 10 have been charged within the commissions and are in proceedings at various stages, and 26 have neither been charged nor have been deemed eligible for transfer. Although President Obama did not bring new detainees to Guantanamo, and President Trump has not done so to date, President Trump has stated in a recent Executive Order that “the United States may transport additional detainees to US Naval Station Guantanamo Bay when lawful and necessary to protect the Nation.”

Overall Approach to Commissions Moving Forward: Reform or Repeal?

Workshop participants were divided on the wisdom of establishing the commissions in the first place–with some supportive of the goals underlying the military commissions and others critical of the entire endeavor as an unnecessary diversion from time-tested Article III courts and the regular military justice system. Yet all agreed that

The commissions are not working as intended; and

The commissions should either be reformed or terminated.

Options for improving US military commissions

The Workshop considered a variety of reforms to the commissions. Although many participants did not think that the commissions should continue, participants identified a series of reforms that merit consideration and review, in particular

Expand and/or clarify the role of the commissions’ Convening Authority using the authority and role of convening authorities within the US military justice system as a model.

Change and expand the eligibility rules for trial judges and change the current judicial pay and tenure structure to allow both civilian and military judges to hear commission cases (as opposed to the current rules, which permit only military judges to serve).

Mitigate or minimize procedural and appellate delay by removing the death penalty as a sentencing option.

Enhance or eliminate the role of the Court of Military Commissions Review. This is a part-time court, with judges paid by the hour, that hears cases of first impression, interlocutory appeals, and emergency writs without settled law. A standing court could more expeditiously process these appeals. Alternatively, disbanding the Court of Military Commissions Review in favor of direct appeal to the D.C. Circuit would more rapidly result in settled law and precedent.

Review the classification and declassification procedures (which are necessary, but slow) for efficacy.

Establish a central and timely website and clearinghouse for commission filings and information to enhance transparency, public knowledge, and confidence in the commission’s proceedings.

Alternatives to Commissions

Participants also considered alternatives to commissions, including prosecution

In-theater before commissions or courts-martial;

By host-government courts;

By third-country courts;

Before hybrid domestic-international courts;

Within the US military justice system; and

Before Article III federal courts.

In addition, there was a notable degree of support for the following conclusions:

Most participants expressed the view that US national security and justice would be better served by trying terrorism cases in Article III courts, instead of before commissions as they are currently constituted.

Many participants recommended that remote plea-bargaining before Article III judges via videoconference is an option that should be considered for Guantanamo detainees.

There was consensus that the prohibition on transferring Guantanamo detainees to the United States should be repealed to afford the Executive Branch flexibility in addressing terrorism cases.

New Entrants

As indicated by the recent Executive Order, the possibility of bringing new detainees to Guantanamo, and potentially charging them in the military commissions system, is now an option. Yet most participants agreed that bringing new entrants into the current military commissions system would be problematic. Specifically,

Most participants—indeed, all but one—agreed that bringing new entrants not currently detained at Guantanamo, such as ISIS members, into the existing commissions system at Guantanamo Bay would compound existing challenges, such as those involving prosecutorial and appellate delay, cost, and both public and international credibility.

Most participants also agreed that new entrants would also bring potential additional challenges, such as litigation addressed to detention authority under the existing 2001 Authorization for the Use of Military Force, the scope of the 2009 Military Commissions Act (MCA), the co-mingling of detainees, and/or the exact crimes with which the detainees are charged.

The “End of Conflict” and a New AUMF

Finally, participants identified a series of issues related to defining the “end of conflict” with respect to some or all of the conflicts during which detainees have been transferred and held at Guantanamo, as well as issues that could arise if there is a new authorization to use military force to provide clearer and more specific authority for the use of force against ISIS and other terrorist groups. Specifically,

Many participants expressed the view that the US should better define what counts as the end of conflict and how the operations of jus post bellum should be carried out. Such definition could also encourage and facilitate the plea process, enhance the commissions’ credibility, and minimize the risk of inconsistent or adverse judicial or congressional definitions.

There was consensus that, until and unless there is a declared “end of conflict,” the current Periodic Review Board process for detainees should continue. This process assesses whether continued law-of-war detention is necessary to protect against a significant threat to the security of the United States.

Most participants agreed that a new AUMF would reduce the legal grounds for litigation challenging the President’s authority to detain new persons. However, participants could not agree on whether a new AUMF should include express detention authority and/or a sunset clause.

In sum, the Workshop Report offers a detailed, non-partisan, legal and policy analysis and recommendations with respect to the wide range of issues that currently face the Military Commissions and that will remain salient if the Trump Administration ultimately decides to expand the Commissions’ use.

The Hon. James E. Baker is INSCT Director and Chair of the ABA Standing Committee on Law and National Security. Laura A. Dickinson is Oswald Symister Colclough Research Professor of Law at George Washington Law.